Fordham Law School
FLASH: The Fordham Law Archive of Scholarship and History
Faculty Scholarship
2011
Localities as Equality Innovators
Robin A. Lenhardt
Fordham University School of Law, [email protected]
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Recommended Citation
Robin A. Lenhardt, Localities as Equality Innovators, 7 Stan. J. C.R. & C.L. 265 (2011) Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/459
ARTICLE
LOCALITIES AS EQUALITY INNOVATORS
R.A. Lenhardtt
IN TRO D U CT IO N ... 2 6 5
I. LOCALITIES AND EQUALITY INNOVATION ... 270
II. JUDICIAL CONSTRAINTS ON INNOVATION IN THE RACE CONTEXT ... 275
III. STRUCTURAL APPROACHES TO RACIAL INEQUALITY ... 278
A. Existing Regulatory Innovations ... 279
B. A Modest Proposal: The Race Audit Device ... 281
C. Developing Better Solutions for Structural Racial In eq u ality ... 2 8 5 D. Strengthening Local Incentives for Innovation ... 287 C O N CLU SIO N ... 2 9 0
INTRODUCTION
Broadcast images of young African American civil rights protesters being battered by water from high-pressure fire hoses served as a turning point in the grassroots movement for racial equality and a catalyst for the enactment of the Civil Rights Act of 1964.1 The decision of Bull Connor, Birmingham,
1 Associate Professor of Law, Fordham Law School. In developing the ideas discussed in this article, I have benefitted from useful comments from and numerous conversations with colleagues, including Michelle Adams, Rick Banks, David Barron, Elise Boddie, Devon Cardado, Guy Charles, Nestor Davidson, Richard Ford, Sheila Foster, Katherine Franke, Jeanne Fromer, Jerry Frug, Suzanne Goldberg, Rachel Godsil, Jennifer Gordon, Kristin Johnson, Olati Johnson, Sonia Katyal, Catherine Powell, Aaron Saiger, Susan Sturm, and Benjamin Zipursky. My thanks to Ernestine Narcisse and the Fordham Law School Library staff for helpful research assistance, and to Christopher Hu and the other members of the Stanford Journal of Civil Rights & Civil Liberties, for their hard work on this article and the symposium of which it was a part.
1. See Michael J. Klarman, Brown at 50, 90 VA. L. REv. 1613, 1628 (2004) (discussing Bull Connor and his violence as catalyst for the Civil Rights Act of 1964); see also Tomiko Brown-Nagin, Race as Identity Caricature: A Local Legal History Lesson in
266 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [VII:2 Alabama's former Public Safety Commissioner, to attack civil rights protesters in so brutal a manner came to signify the evils of Jim Crow segregation and its systematic subjugation of black Americans.2 In a way few would have predicted at the time, Bull Connor's actions, and others taken by local and state officials throughout the South and in some areas of the North, also worked, in no small measure, to shape modem United States Supreme Court jurisprudence in the area of race.3 This is so in part because the Court found itself so often confronted with local defiance to racial segregation in countless cases in the decades following its landmark decision in Brown v. Board of Education.4 There has evolved in post-Brown cases a negative understanding of localities- what I call the "bad city" image-that now applies across a variety of contexts.
The image certainly (and quite properly) gets evoked in cases involving racially segregative state action intended to disadvantage racial minorities.5 But it has not been confined to such cases. Under strict scrutiny, the Court now effectively treats as "bad cities" even those localities that seek affirmatively to promote equality and eliminate persistent racial disparities through their initiatives.6
Recent decisions such as Parents Involved in Community Schools v.
Seattle School District No. 17 and Ricci v. DeStefano8 help to illustrate the point. In those cases, conservative justices invalidated local programs or policy decisions designed to address racial disparities: Seattle- and Louisville-based school assignment programs geared toward reducing the effects of resegregation in the former case, and the City of New Haven's judgment that compliance with federal antidiscrimination law required the invalidation of test results that would have exacerbated racial imbalances in a fire department with a long history of racial exclusivity in the latter.9 Citing the dangers of race- conscious decision making, the Parents Involved and Ricci courts declined to afford local actors the deference that, ironically, had been forthcoming even in early cases challenging bedrock components of the Jim Crow system.10
Legal scholars have long decried the empty formalism inherent in the
the Salience of Intraracial Conflict, 151 U. PA. L. REV. 1913 (2003) (discussing Connor's response).
2. Gilda R. Daniels, Senator Edward Kennedy: A Lion for Voting Rights, 14 N.Y.U. J.
LEGIS. & PUB. POL'Y 415, 433 n. 104 (2011) (discussing Connor as symbol of civil rights abuses).
3. See R.A. Lenhardt, Race Audits, 62 HASTINGS L.J. (forthcoming 2011) (manuscript at 4-5) (on file with author).
4. 347 U.S. 483 (1954).
5. Lenhardt, supra note 3, at 4-5.
6. Id.
7. 551 U.S. 701 (2007).
8. 129 S. Ct. 2658 (2009).
9. Lenhardt, supra note 3, at 4-5.
10. Id. at4-6.
LOCALITIES AS EQUALITY INNO VA TORS
Rehnquist and Roberts Courts' determination to equate local policies designed to disadvantage racial minorities with those designed to promote equality for all." In this Article, I explore what the Court's formalistic stance means for localities and possible innovations in addressing persistent racial disparities in areas such as education, housing, employment, health care, and criminal justice. Admittedly, one would be hard pressed to find the words "race" and
"innovation" being used in conjunction with one another in any of the Court's cases. The Court's hostility to affirmative action and its insistence on treating ongoing structural racial inequalities as "societal discrimination" that cannot constitutionally be redressed through race-conscious means have dramatically limited opportunities for creativity in dealing with the problems of the modem color line. 2 Even more, they have severely circumscribed the role of localities in this context. Courts, not the local officials whose on-the-ground experience and expertise have been celebrated as the cornerstone of democracy in other areas of the law,'3 now dictate how much or, more accurately, how little cities and other localities can accomplish in meaningfully addressing racial inequalities that divide their communities and, research increasingly shows, effect a drag on their long-term economic prospects.14
11. See, e.g., Guy-Uriel E. Charles, Affirmative Action and Colorblindness from the Original Position, 78 TUL. L. REV. 2009 (2004); Kimberl6 Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331 (1988); Neil Gotanda, A Critique of "Our Constitution Is Color- Blind, " 44 STAN. L. REV. 1 (1991); Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987); Ian F.
Haney L6pez, "A Nation of Minorities ": Race, Ethnicity, and Reactionary Colorblindness, 59 STAN. L. REV. 985 (2007); Reva B. Siegel, Discrimination in the Eyes of the Law: How
"Color Blindness" Discourse Disrupts and Rationalizes Social Stratification, 88 CALIF. L.
REV. 77 (2000).
12. Lenhardt, supra note 3, at 5-6; see also GIRARDEAU A. SPANN, THE LAW OF AFFIRMATIVE ACTION: TWENTY-FIVE YEARS OF SUPREME COURT DECISIONS ON RACE AND REMEDIES 2 (2000). The Court has consistently regarded "societal discrimination" as too amorphous a concept to recognize as a constitutional injury. See, e.g., City of Richmond v.
J.A. Croson Co., 488 U.S. 469, 497 (1989) (plurality opinion); Regents of the Univ. of Cal.
v. Bakke, 438 U.S. 265, 296 (1978) (describing societal discrimination as a "social injury"
too insignificant to warrant a race-based remedy). For more on societal discrimination, see Michael Selmi, Remedying Societal Discrimination Through the Spending Clause, 80 N.C.
L. Rev. 1575 (2002).
13. See, e.g., United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Mgmt.
Auth., 550 U.S. 330 (2007) (waste management); Vill. of Belle Terre v. Boraas, 416 U.S. 1 (1974) (zoning decisions); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) (education).
14. For research indicating that addressing racial inequality can have a positive impact on a locality's bottom-line, see ROBERT WEISSBOURD, STRENGTHENING COMMUNITIES FOR REGIONAL PROSPERITY 4-5 (2006), available at http://www.rw- ventures.com/publications/downloads/StrengtheningCommunities.pdf (indicating, inter alia, that one study on this issue "shows that cities with higher poverty rates face higher per capita costs not only for poverty-related programs, but also for non-poverty-related expenditures including general government functions").
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268 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [VIl:2
The recalcitrance of localities, such as Birmingham, in the wake of Brown necessitated judicial oversight of this sort. But it is not at all clear that we still need courts to occupy so much of the field when it comes to determining the most effective ways to navigate the racial divide today.
Obviously, racial discrimination still exists. In particular, official race-based discrimination remains a serious problem against which we must continue to guard. Incidents such as those that transpired in Tulia, Texas, where law enforcement officials were shown effectively to have engaged in race-based prosecution of nearly fifty African Americans charged in connection with a drug sting, make this clear.15 At the same time, we now have case law and federal, state, and local antidiscrimination statutes on the books that establish norms and baseline protections against racial discrimination in a range of areas that simply did not exist when Bull Connor and others used their public offices to deny African American citizens the equal treatment and opportunity guaranteed by the Fourteenth Amendment. With proper enforcement, these laws place meaningful limits on facially discriminatory government policies and programs.16
Further, the overall effectiveness of the Supreme Court's interventions in the race context has been limited. The judicial preoccupation with the eradication of intentional racial discrimination evident in modem cases- manifested in a norm of colorblindness so expansive that, after Ricci, some maintain that it prohibits the mere awareness of race'7 -may have helped to place limits on overtly discriminatory government programs. It has, however, done little, if anything, to address the source of persistent inequalities in core areas.18 Many of the justices whose vision of race and discrimination has prevailed in recent cases would no doubt insist that any lingering disparities could be attributed to perfectly "natural" individual choices19 or perhaps even the failings of the affected minorities themselves, rather than to existing
15. For a discussion of the Tulia, Texas case and the efforts made to bring justice to those victimized, see Kevin R. Johnson, Taking the "Garbage" Out in Tulia, Texas: The Taboo on Black- White Romance and Racial Profiling in the "War on Drugs, " 2007 Wis. L.
REV. 283 (2007).
16. But see Goodwin Liu, The Bush Administration and Civil Rights: Lessons Learned, 4 DUKE J. CONST. L. & PUB. POL'Y 77, 78-86 (2009) (pointing out that civil rights enforcement has sometimes been inadequate, such as during the Bush administration).
17. See, e.g., Michelle Adams, Is Integration a Discriminatory Purpose?, 96 IOWA L.
REV. 837, 840-41 (2011) (arguing that, after Ricci, the mere consideration of race for any purpose might invoke strict scrutiny). But see Elise C. Boddie, The Way Forward: Racial Integration After Ricci, a Response to Michelle Adams, IOWA L. REV. BULL. (forthcoming 2011) (manuscript at 2-3, 10) (on file with author) (arguing that Ricci's reach is relatively
limited and, in any event, does not prohibit all race-conscious goals or purposes).
18. See Lenhardt, supra note 3, at 3.
19. See, e.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 736 (2007) (plurality opinion); see also id. at 750 (Thomas, J., concurring).
LOCALITIES AS EQUALITY INNO VA TORS
doctrine. But a growing body of scholarship suggests otherwise. Legal scholars, historians, and social scientists increasingly point to the need to interrogate more fully the systems and structures that could explain such
"durable inequality."21 Structuralist accounts of race "shift[] our attention"
from intentionality or "intra-institutional"-based analyses-favorites of the current Court-to interrogations of "inter-institutional arrangements and interactions" that better explain the cumulative and multi-generational nature of racial disadvantage. 22 They make clear that an exclusive focus on intentionality, by definition, will always be inadequate to address persistent racial inequalities.23
This Article thus argues that instead of regarding cities and localities that, like Seattle and Louisville, try to develop serious solutions to existing racial disparities as "bad cities" no different from those whose notorious policies spurred the civil rights movement of the 1950s and 1960s, we should be regarding them as potential "equality innovators., 24 Their on-the-ground experience with the realities of race and its operation in the twenty-first century arguably places them in a better position than courts to develop innovative approaches to the structural racial inequities with which so many municipalities must grapple. Existing doctrine limits dramatically the ability of courts to confront in any meaningful way how localities and the people that inhabit them actually navigate race.
Part I develops the concept of local "equality innovators" by first -detailing the parameters of the intellectual property term "user innovation"
from which it takes its inspiration, and then considering theoretical support for extending opportunities for innovation from the individual user to the institutional context. Part II takes a closer look at existing judicial barriers to locality-generated innovation, briefly discussing recent cases and the emphasis on "race-neutral alternatives" in Supreme Court jurisprudence. Part III begins
20. Abigail and Stephen Themstrom have been vocal advocates of the latter position in conservative circles. See, e.g., ABIGAIL THERNSTROM & STEPHAN THERNSTROM, No EXCUSES: CLOSING THE RACIAL GAP IN LEARNING 4-5 (2003) (advancing claim that the educational achievement gap reflect cultural deficiencies in African American and Latino students and families).
21. See CHARLES TILLY, DURABLE INEQUALITY (1998) (developing the term "durable inequality"). For further examples of such scholarship, see COLIN GORDON, MAPPING DECLINE: ST. LouIs AND THE FATE OF THE AMERICAN CITY (2008); IRA KATZNELSON, WHEN AFFIRMATIVE ACTION WAS WHITE: AN UNTOLD HISTORY OF RACIAL INEQUALITY IN TWENTIETH-CENTURY AMERICA (2005); DOUGLAS S. MASSEY, CATEGORICALLY UNEQUAL:
THE AMERICAN STRATIFICATION SYSTEM, at xv (2007); john a. powell, Structural Racism:
Building upon the Insights of John Calmore, 86 N.C. L. REV. 791, 796 (2008); Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM. L.
REV. 458 (2001).
22. powell, supra note 21, at 796.
23. Id.
24. Lenhardt, supra note 3, at 62.
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270 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [VII:2 by identifying examples of innovative regulatory devices that, consistent with the calls of many legal scholars, focus on structural barriers to racial equality, rather than on intentional racial discrimination alone. It then advances a broad proposal that could be deployed by localities, even within the narrow confines of existing doctrine, to respond more effectively to the structural sources of persistent racial inequality. It outlines some of the benefits that the race audit proposal, which I introduce more fully in an article in the Hastings Law Journal,25 might have for encouraging innovation in the race context. The article concludes by briefly addressing potential concerns raised by the race audit proposal. It also situates this Article in a larger project on civil rights in the twenty-first century in which I am engaged.
I. LOCALITIES AND EQUALITY INNOVATION
In his 2011 State of the Union address, President Barack Obama talked about the need to enhance American innovation.26 Areas such as business and education made the list of sites where innovative new strategies could be effectively deployed to improve the nation's competitiveness and help pull the country out of the worst recession in a generation.27 Civil rights and racial equality, notably, did not.
For those who, as I do, find it hard to ignore matters of race when assessing the current economic crisis, the omission was striking. It was, however, hardly surprising, even setting aside the political considerations that no doubt played a significant role in shaping the speech. The truth is that, unlike in areas such as business, science, technology, and education, we have no real innovation norms in the race context. In fact, as I explain in greater detail in Part II, the Court has actively discouraged meaningful efforts to innovate or experiment in this context.2 8 Localities and other government entities have been cast as obstacles to productive change, rather than the potential sources of it. Nevertheless, I contend that we should be looking for ways to innovate and to place localities more and more at the center of such efforts.
In the absence of strong innovation norms in the race context, it makes sense to consider other areas where theories pertaining to experimentation and innovation have been better developed. The intellectual property context provides an ideal starting point. There, of course, legal scholars have long
25. See Lenhardt, supra note 3.
26. Peter Grier, Obama State of the Union 2011: U.S. Must 'Win the Future' Through
Innovation, CHRISTIAN Sci. MONITOR, Jan. 26, 2011,
http://www.csmonitor.com/USA/Politics/2011/0126/Obama-State-of-the-Union-20 11 -US- must-win-the-future-through-innovation.
27. See id
28. See infra p. 277.
LOCALITIES AS EQUALITY INNO VA TORS
debated the "socially desirable level of protection provided by intellectual property rights" necessary to encourage the development of intellectual goods.2 9 Attention has most often been trained on the producers or manufacturers of such goods, who necessarily operated in a "closed way, ....
using patents, copyrights, and other protections to prevent imitators from free riding on their innovation investments."30 Increasingly, however, scholars have begun to study and develop ways to understand the phenomenon of user innovation.3 1
"User innovation" refers to the modification of mass-produced goods by consumers able to satisfy specific product needs or tastes without the assistance or acquiescence of manufacturers.32 At some level people have, as William Fisher notes in a recent article, long found it necessary-for reasons of functionality or pure aesthetics-to modify mass-produced items such as cars, shoes, or even fishing equipment to suit their particular needs.33 The inclination that leads one to "supe up" a vintage car or alter a bicycle can hardly be called new.34 But user-based innovation has become increasingly prevalent or, as Eric von Hippel contends in his book on this subject, "democratized., 35 Technological advances in areas such as computer software and gaming, digital media, and biotechnology have made it much easier and productive for consumers to modify existing products for personal use and, in some instances, redistribution.36 Think, for example, about recent controversies surrounding
"digital mashups... combining audio, video, graphical, or textual material
29. Jonathan M. Barnett, Is Intellectual Property Trivial?, 157 U. PA. L. REV. 1691,
1692 (2009).
30. ERIC VON HIPPEL, DEMOCRATIZING INNOVATION 2 (2005).
31. See, e.g., id; William W. Fisher III, The Implications for Law of User Innovation, 94 MINN. L. REV. 1417, 1441-46 (2010) (discussing the challenges user innovation poses for law); Katherine J. Strandburg, Evolving Innovation Paradigms and the Global Intellectual Property Regime, 41 CONN. L. REV. 861 (2009) [hereinafter Strandburg, Evolving Innovation] (discussing the Agreement on Trade-Related Aspects of Intellectual Property and the extent to which innovations in use of certain technologies have outpaced conceptions of existing intellectual property models); Katherine J. Strandburg, User Innovator Community Norms: At the Boundary Between Academic and Industry Research, 77 FORDHAM L. REV. 2237 (2009) [hereinafter Strandburg, User Innovator Community Norms]
(discussing methods of technology sharing and academic research that raise issues for patent law).
32. Fisher, supra note 31, at 1418-30.
33. Id.
34. See Strandburg, Evolving Innovation, supra note 31, at 873-74.
35. VON HIPPEL, supra note 30, at 1, 121-3 1.
36. See id Oftentimes, the desire to redistribute such goods represents, as Professors Eduardo Pefialver and Sonia Katyal discuss in their recent book, a protest against operative rules about ownership or use. See EDUARDO MOISES PEI&ALVER & SONIA K. KATYAL, PROPERTY OUTLAWS: How SQUATTERS, PIRATES, AND PROTESTERS IMPROVE THE LAW OF OWNERSHIP (2010).
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from preexisting works into new digital works,"37 which, for example, occur frequently in rap music,38 or the prevalence of "gamer"-inspired alterations and sharing of mass-produced computer games.39 These and other similar user innovations create tensions within existing intellectual property law, which may or may not incorporate norms about sharing or modification,40 and require courts and scholars alike to reconsider existing rules about product use and innovation.4 1
User innovation becomes possible because of two important factors:
localized, user-specific information and knowledge about a product, and the capacity of users to carry out innovations.4 2 Producers, not surprisingly, have mixed views of the innovations these factors make possible.4 3 Some plainly view it as an encroachment on intellectual property rights protected by patent or copyright law. But even this reaction provides useful information for our purposes here. Underlying the debate is the recognition that user innovation produces value and concrete benefits.44 Some of these benefits, like the idea that such innovation has positive redistribution effects and promotes self- determination and expression, arguably obtain primarily at the individual user level.45 Others, such as the idea that inventions in this context enhance overall efficiency and, assuming an operational distribution and rights scheme, can make the product more widely available extend more broadly, as the fact that many producers ultimately seek either to encourage or facilitate user-level innovations for the own purposes suggests.
4 6
Obviously, courts are not manufacturers, and localities are not users in the traditional sense. It strikes me, though, that an argument can be made for formally recognizing the capacity that cities and other localities have to be
"equality innovators," and to engage in productive experimentation and innovation in the area of race that helps to address underlying public systems and structures that result in broad-scale inequality.47 Like some producers of technological goods, courts are somewhat removed from the day-to-day reality
37. Fisher, supra note 31, at 1418.
38. PENALVER & KATYAL, supra note 36, at 208-26 (discussing The Grey Album, which incorporated digital content from the Beatles's The White Album with rapper Jay-Z's The Black Album); see also Fisher, supra note 31, at 1418-19 (same).
39. See Fisher, supra note 31, at 1421-22 (noting that player modification of computer games has become so commonplace that producers of some products now sometimes provide player tool kits to facilitate modifications and sharing).
40. See Strandburg, Evolving Innovation, supra note 31, at 861; Strandburg, User Innovator Community Norms, supra note 31, at 2237-38.
41. Fisher, supra note 31, at 1472-76.
42. Strandburg, Evolving Innovation, supra note 31, at 874.
43. Fisher, supra note 31, at 1435-41.
44. VON HIPPEL, supra note 30, at 2, 9, 123.
45. See id. at 122-23.
46. Id.
47. See Lenhardt, supra note 3, at 62.
LOCALITIES AS EQUALITY INNO VA TORS
of race on the ground. The Supreme Court's aspirational color-blindness mantra may appeal to some.48 But no one can deny that-insofar as it represents the product that courts provide in this area-it offers few meaningful ways to deal with the racial division and separation that still pervades much of American society.4 9 Justice O'Connor's majority opinion in Grutter v.
Bollinger, which recognized achieving the educational benefits of broad diversity as a compelling interest, provides a rare example of the Court acknowledging what de facto racial segregation in housing or education might mean for particular groups on the ground, not to mention our democracy as a whole.50
Localities, in contrast, are intimately involved with how race is lived or
"used" everyday.5 1 Through the programs and institutions that they operate, cities and other local government entities have specific, localized information about the existence of persistent racial disparities, not to mention the impact such inequalities have on the set of opportunities particular groups enjoy, and the extent to which differentials in access to public goods such as education or housing limit the ability of racial minorities and others to participate actively in their communities. Increasingly, as suggested earlier, the dynamics of the modem color line also have concrete effects on a locality's ability to improve its economic prospects.53 It would be hard to imagine an entity with better information or raw capacity to make the kind of changes, policy alterations, and cross-jurisdictional collaborations necessary to generate the kind of innovations in the race context that users in the intellectual property area now
48. On colorblindness, see L6pez, supra note 11, at 988 (discussing, inter alia, conflicting visions of colorblindness as a future goal of society and "as a means to achieve this end").
49. Indeed, some argue that this reality accounts, inter alia, for Justice Kennedy's separate opinion in Parents Involved, which went to great lengths to reject the plurality's contention that seeking to address racial isolation in our public schools should not be regarded as a compelling governmental interest for purposes of strict scrutiny. See Kimani Paul-Emile, The Use of Race in Biomedical Science 31-34 (unpublished manuscript) (on file with author) (discussing Kennedy's Parents Involved concurrence and asserting the existence of a strain of "racial pragmatism" in certain areas of existing equal protection doctrine).
50. 539 U.S. 306, 331 (2003). Notably, Grutter found the Court willing to defer to the expertise of education officials, rather than local government officials, and then only on a theory that had earlier been proposed by a member of the Supreme Court, former Justice Lewis Powell. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 317 (1978) (articulating diversity theory for admissions).
51. See Lenhardt, supra note 3, at 43.
52. For a discussion of opportunity deficits stemming from racial inequality and new efforts to map opportunity differentials between racial minorities and others, see KIRWAN
INST. FOR THE STUDY OF RACE AND ETHNICITY, COMMUNITIES OF OPPORTUNITY: A
FRAMEWORK FOR A MORE EQUITABLE AND SUSTAINABLE FUTURE FOR ALL (2007), available
at http://www.racialequitytools.org/resourcefiles/powell l.pdf.
53. See WEISSBOURD, supra note 14, at 4, 5.
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facilitate.54 The potential for productive, equality and democracy-enhancing benefits that localities have in this regard rivals the societal and cultural benefits that we seek to promote through intellectual property law.5 5
The loose analogy drawn here admittedly falls short of perfect. Among other things, localities are as much producers of goods as they are users of court doctrine. Further, the incentives that localities and individual users have for innovation are quite different. Users of software and other technology, while perhaps willing to "reveal" or share their innovations with others,56 often make modifications to goods to serve their own individual needs.57 A locality might experiment with new strategies to deal with social problems to improve its bottom line, but it does so with a clear understanding of the implications such strategies will have for the residents for whom it has responsibility and to whom it has certain obligations. Still, I think the user-innovation analogy I have drawn here is helpful. When situated within legal scholarship on
"democratic experimentalism," which contemplates the decentralization of power to enable local actors and citizens to "utilize their local knowledge to fit solutions to their individual circumstances," it speaks more directly to the kind of institutional innovation I hope to encourage in the race context.5 8
Democratic experimentalism seeks to "reduc[e] the distance between...
the Madisonian ideal of a limited government assured by a complex division of powers and . . .the governmental reality characteristic of the New Deal synthesis, in which an all-powerful Congress delegates much of its authority to expert agencies that are checked by the courts .... 59 Scholars writing in this area have, for example, emphasized the possibilities that an experimentalist approach characterized by flexible procedures and "ongoing stakeholder participation and measured accountability" can have for meaningful reform of institutions such as schools, welfare organization, prisons, and even some private workplaces.60 Notably, matters of racial inequity and disadvantage have
54. Admittedly, localities or regional entities, might, in circumstances lack the legal power necessary to institute certain reforms. But, as I argue elsewhere, it seems that they could productively solicit state legislatures to provide whatever authority necessary to move forward with new policies and seek additional support from federal entities. See Lenhardt, supra note 3, at 38. On the necessary relationship between localities and other governmental entities, see David J. Barron, A Localist Critique of the New Federalism, 51 DuKE L.J. 377, 378-79 (2001).
55. On the kinds of benefits intellectual property law seeks to promote, see, e.g., Jeanne C. Fromer, Claiming Intellectual Property, 76 U. CHI. L. REV. 719, 731 (2009).
56. VON HIPPEL, supra note 30, at 77-91.
57. Id. at 19-20.
58. Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267, 267 (1998).
59. Id. at 268.
60. Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 HARV. L. REV. 1015, 1019 (2004).
LOCALITIES AS EQUALITY INNOVATORS
generally not been widely discussed.6 1 This literature, nevertheless, points to how one might extend more fully the concept of democratic experimentalism to matters of race. Embracing the user-innovation analogy would be useful to the extent that the analogy highlights the uniquely oppositional positions arguably held by courts and localities with respect to some issues in the race context and the advantages that might accompany loosening the grip that courts now have on strategies for change--of course, without eliminating their institutional oversight and review roles.
Looking to local governments, rather than merely courts, to be "equality innovators" that provide solutions to problems such as hypersegregation and the negative effects it has for racial minorities in a range of areas would, as experimentalists urge, help reinvigorate Madisonian conceptions of local entities and their capacity to be incubators of solutions driven by local knowledge and insights that produce broad benefits at the community level.62 The deep skepticism with which the Court has regarded race-conscious initiatives like those at issue in Parents Involved, for example, cannot easily be reconciled with the view, articulated by the framers, that "the most effective democracy occurs at local levels of government, where people with firsthand knowledge of local problems have more ready access to public officials responsible for dealing with them.'63 The proposal to regard localities as
"equality innovators," in contrast, resonates deeply with democratic values about local engagement and the position-increasingly advocated by scholars such as Gerald Frug-that cities and other localities can serve as important vehicles for community building and belonging.64
II. JUDICIAL CONSTRAINTS ON INNOVATION IN THE RACE CONTEXT
Existing doctrine, as I noted at the outset, does not encourage "equality innovation" or the new policies and creative regional alliances that I envision localities committed to addressing structural racial inequality generating. As I have previously observed, it essentially places localities in a no-win situation:
"refuse ever to consider race and allow racial inequity and segregation to flourish, or consider race and risk running afoul of current law."65 Even where existing cases do not actually foreclose a particular strategy, the reality is that the Supreme Court's negative stance toward local initiatives to combat the
61. Susan Sturm's excellent work on second-generation race and gender discrimination in employment provides an important exception. See Sturm, supra note 21.
62. See Sabel & Simon, supra note 60, at 1100-01.
63. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 575 n.18 (1985) (Powell, J., dissenting).
64. See GERALD E. FRUG, CITY MAKING: BUILDING CITIES WITHOUT BUILDING WALLS
9(1999).
65. Lenhardt, supra note 3, at 7.
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cumulative effects of racial segregation and inequity arguably has the effect of stifling creativity for many in this area.66 Localities not overly concerned about potential liability under the unforgiving standard of strict scrutiny applied in all cases involving race may-because of the very narrow set of options existing doctrine sets out for meaningful engagement with the effects of structural racism-simply lack the inspiration to develop truly innovative programs.
Together, Parents Involved and Ricci express clear disdain for initiatives that try to wrestle with problems such as resegregation in public schools or residential areas which, at a surface level, appear to have more to do with individual choices and preferences, rather than identifiable government policies. "The way to stop discrimination on the basis of race," Chief Justice Roberts declared in his Parents Involved plurality opinion, "is to stop discriminating on the basis of race."
67
The only area of settled case law that remotely reflects the ethic of experimentation and innovation that I think we should be promoting in the race context relates to so-called race-neutral alternatives.6 8 Because racial classifications of any sort raise serious concerns under existing doctrine,69 the Court requires state actors to pursue race-neutral alternatives before utilizing racial classifications.70 In writing the majority opinion upholding the University of Michigan Law School's race-conscious admission program in Grutter v.
Bollinger, Justice O'Connor explained what the mandate to consider alternatives entails:
Narrow tailoring does not require exhaustion of every conceivable race- neutral alternative. Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups. . . .Narrow tailoring does, however, require serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.7 2
On the surface, the exhortation to engage in "good faith consideration of workable race-neutral alternatives" appears to be a call for experimentation.73 But the reality is quite different. It has functioned, first and foremost, as a restraint on government decision making, rather than a license to innovate. In
66. See SPANN, supra note 12, at 192.
67. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007) (plurality opinion).
68. See Boddie, supra note 17, at 12-14 (discussing race-neutral alternatives and arguing that the Court's Ricci decision did not change fundamentally what constitutes race- neutrality). But see Adams, supra note 17, at 858 (contending that Ricci arguably stands for the proposition that merely considering race can constitute race-conscious decision making).
69. See Parents Involved, 551 U.S. at 720 (plurality opinion).
70. See Grutter v. Bollinger, 539 U.S. 306, 339-40 (2003).
71. Id. at 306.
72. Id. at 339 (citation omitted).
73. Id.
LOCALITIES AS EQUALITY INNO VA TORS
Supreme Court affirmative action cases, programs have almost always been invalidated because conservative majorities have, from the bench, determined that government decision makers on the ground could have pursued additional alternatives before resorting to use of race-conscious measures.74 Grutter, which approved the University of Michigan Law School's race-conscious admissions program even though the Law School had not first exhausted every possible race-neutral alternative, 75 represents a departure, at least in terms of outcome, from earlier cases that, as Chief Justice Roberts strongly signals in Parents Involved, the Court will likely not soon repeat.7 6 At least in the near term, it seems that we can expect it to continue to ask government entities to engage in the shot-in-the-dark experimentation that the vague requirement that race-neutral alternatives be pursued encourages.
Justice Kennedy's much-discussed concurrence in Parents Involved arguably provides a better, though as of yet doctrinally indeterminate, avenue for greater creativity on the part of localities. Kennedy joined a majority of Justices in concluding, among other things, that the Seattle and Louisville school assignment programs at issue in Parents Involved were not narrowly tailored. He wrote a separate concurrence, however, to articulate a different conception of racial injury and the appropriate role of local governments in addressing inequality than that described in Chief Justice Roberts's plurality opinion.77 First, Justice Kennedy expressed the position, shared by four dissenters, that "seek[ing] to reach Brown's objective of equal educational opportunity" constitutes a legitimate. governmental purpose, a proposition Roberts squarely rejected.78 More importantly for our purposes, he also specified a list of race-conscious decisions that, in his view, schools could make without invoking strict scrutiny--e.g., "strategic site selection of new schools; drawing attendance zones with... recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty ... ; and tracking enrollments, performance, and other statistics by race."79 For Justice Kennedy, such initiatives carried no risk of racial injury because, although they require acknowledgement of race, they do not require officials explicitly to classify individuals on the basis of racial background.8 ° He explained that, in his estimation, they are different in kind from programs
74. See Ian Ayers & Sydney Foster, Don't Tell, Don't Ask: Narrow Tailoring After Grutter and Gratz, 85 TEX. L. REV. 517, 522 n.25 (2007) (listing cases where a failure to consider race-neutral alternatives was deemed problematic).
75. See Grutter, 539 U.S. at 340.
76. Parents Involved, 551 U.S. at 724-25.
77. Goodwin Liu, "History Will Be Heard": An Appraisal of the Seattle/Louisville Decision, 2 HARV. L. & POL'y REV. 53, 66 (2008).
78. Parents Involved, 551 U.S. at 788 (Kennedy, J., concurring). See id. at 732-33, 747.
79. Id. at 789.
80. Id.
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278 STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES [VII:2 that expressly require the application of racial classifications, which, in his estimation, should be subject to the most exacting scrutiny.8 1
It remains to be seen whether the kind of initiatives Justice Kennedy envisions will be adopted on a large scale by local officials or, for that matter, how they will be received by his colleagues on the Court. It certainly seems likely that the Parents Involved dissenters would agree with Justice Kennedy on a limited basis, even as they push for less constrained local decision making in this area. Even so, for someone that, as I do, envisions a broader-though, importantly, not unfettered-berth for "equality innovators," Justice Kennedy's proposal represents only a limited solution to an exceedingly complex problem.
III. STRUCTURAL APPROACHES TO RACIAL INEQUALITY
The previous Parts admittedly paint a rather grim picture of current doctrine and the constraints that it places on localities interested in adopting strategies to address structural racial inequalities. Legal scholars have proposed attractive alternatives to the Court's current approach to race.s2 For prospective local "equality innovators, however, the question, is whether, in the current moment, when the adoption of such alternatives seems unlikely, room exists to adopt creative approaches to the structural problems that attend the color line in their jurisdictions.
This Part answers that question in the affirmative. In an effort to encourage equality innovation, it seeks to identify the opportunities for experimentation and change that exist, notwithstanding the real limitations posed by current doctrine. This Part begins by briefly discussing innovative regulatory devices focused on the mechanisms through which structural racial inequality endures in the United States. It then outlines a proposal for the creation and implementation of an evaluative measure called the race audit that could productively be deployed by local jurisdictions. First developed in an article in the Hastings Law Journal, the race audit proposal seeks to be responsive to legal scholarship on structuralism and to the growing chorus of scholars who maintain that research emphasizing the measurement of
"discrimination from one point in time and in one domain" is simply
"insufficient to identify the overall impact of discrimination on individuals.
81. Id.
82. See, e.g., Jerry Kang & Kristin Lane, Seeing Through Colorblindness: Implicit Bias and the Law, 58 UCLA L. REV. 465 (2010) (behavioral realism); Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161 (1995) (cognitive bias); Lawrence, supra note 11 (unconscious racism); R.A. Lenhardt, Understanding the Mark: Race, Stigma, and Equality in Context, 79 N.Y.U. L. REV. 803 (2004) (racial stigma).
83. See Lenhardt, supra note 3.
84. PANEL ON METHODS FOR ASSESSING DISCRIMINATION, NAT'L RESEARCH COUNCIL, MEASURING RACIAL DISCRIMINATION 246 (Rebecca M. Blank, Marilyn Dabady & Constance
LOCALITIES AS EQUALITYINNOVA TORS
A. Existing Regulatory Innovations
As previously noted, structuralist accounts of race and inequality focus on the cumulative effects of systems and structures that, over time, work to reinforce racial disadvantage.8 5 Existing regulatory devices in the race context, however, still typically retain a focus on intentionality.86 For example, widely deployed tools such as housing audits, which collect data about the incidence of residential discrimination through a "paired testing methodology where black and white auditors" approach real estate agents and record any differences in treatment or access to rental opportunities,87 generally have uncovering intentional discrimination as their primary goal.
This said, noteworthy local, state, and federal regulatory initiatives reflecting structuralist insights exist. For example, at the state and local level, a number of jurisdictions have begun to require the completion of impact statements designed, among other things, to identify racial disparities in a particular domain.88 States such as Connecticut, Iowa, and Minnesota, for example, recently enacted legislation requiring impact statements to detail• 89
disparities in criminal sentencing. Likewise, some localities have also adopted other similar devices to measure the possible effect of government action. These include educational impact statements or fair share provisions for siting public facilities, such as those that have been adopted by New York City.90 A 2003 study of Mebane, North Carolina, and the cumulative effects of
F. Citro eds., 2004).
85. powell, supra note 21, at 796.
86. Id.
87. Douglas S. Massey & Rebecca M. Blank, Assessing Racial Discrimination:
Methods and Measures, in FRAGILE RIGHTS WITHIN CITIES: GOVERNMENT, HOUSING, AND
FAIRNESS 61, 69 (John Goering ed., 2007). Some research has also been completed in the area of home ownership. See Margery Austin Turner & Stephen L. Ross, How Racial Discrimination Affects the Search for Housing, in THE GEOGRAPHY OF OPPORTUNITY: RACE AND HOUSING CHOICE IN METROPOLITAN AMERICA 81, 83-85 (Xavier de Souza Briggs ed.,
2005).
88. Such statements take inspiration from environmental impact statements, which have become prevalent in helping to assess the potential environmental impacts of proposed projects. See Amy L. Stein, Climate Change Under NEPA: Avoiding Cursory Consideration of Greenhouse Gases, 81 U. COLO. L. REV. 473 (2010) (discussing environmental impact statements).
89. See Catherine London, Racial Impact Statements: A Proactive Approach to Addressing Racial Disparities in Prison Populations, 29 LAW & INEQ. 211, 212-14 (2011).
90. See William Valletta, Siting Public Facilities on a Fair Share Basis in New York City, 25 URB. LAW. 1 (1993) (discussing city fair share provisions). Significantly, San Francisco passed an audit-like device focused on issues of gender in the 1990s in an effort to implement the United Nations Convention on the Elimination of All Forms of Discrimination Against Women. See Stacy Laira Lozner, Note, Diffusion of Local Regulatory Innovations: The San Francisco CEDAW Ordinance and the New York City Human Rights Initiative, 104 COLUM. L. REV. 768 (2004); Catherine Powell, Dialogic Federalism: Constitutional Possibilities for Incorporation of Human Rights Law in the
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annexation, sewer placement, and highway relocation efforts also provides a very useful example.
9 1
At the federal level, important models geared at structural inequality can also be found. The much-criticized federal No Child Left Behind Act (NCLB)-which requires public schools both to collect data on racial disparities and to develop strategies for reducing them-stands out as an important example.92 Other models can be found in juvenile justice provisions passed by Congress and even the recent stimulus act.93
As I indicate elsewhere, however, programs now implemented by the Department of Housing and Urban Development (HUD) and the Department of Transportation (DOT) arguably provide the best examples of federal initiatives geared toward structural inequality.94 HUD regulations--consistent with the
"affirmatively furthering" requirement of the Fair Housing Act-currently require state and local grantees of consolidated civil rights programs to conduct, inter alia, an analysis of the impediments to fair housing choice and
"comprehensive review of ... [applicable] laws, regulations, and administrative policies, procedures, and practices" and their impact on "the accessibility of housing.95 DOT provisions seeking to ensure compliance with
United States, 150 U. PA. L. REV. 245, 245-46 (2001).
91. See CEDAR GROVE INST. FOR SUSTAINABLE CMTYS., ADDRESSING RACIAL DISPARITIES IN LOCAL GOVERNMENT ACTIONS: THE MEBANE CASE STUDY (2003), available at http://www.cedargroveinst.org/files/mebanecase.pdf.
92. Olatunde C.A. Johnson, Disparity Rules, 107 COLUM. L. REV. 374, 417 (2007);
James S. Liebman & Charles F. Sabel, The Federal No Child Left Behind Act and the Post- Desegregation Civil Rights Agenda, 81 N.C. L. REV. 1703, 1723 (2003); ; see also Kimberly West-Faulcon, The River Runs Dry: When Title VI Trumps State Anti-Affirmative Action Laws, 157 U. PA. L. REV. 1075 (2009) (addressing remedy under NCLB).
93. See Olatunde C.A. Johnson, Stimulus and Civil Rights, 111 COLUM. L. REV. 154, 193 (2011). The Juvenile Justice and Delinquency Prevention Act (JJDP) requires state recipients of federal juvenile justice funds to "implement strategies to reduce disparities in the confinement rates of minority juveniles where those disparities are found to exist."
Johnson, supra note 92, at 378. The relevant disproportionate minority contact standard, like provisions in the NCLB, addresses the information problem that usually attends the causes of persistent racial inequalities by mandating that states collect and make available to others any evidence of race-based disparity in the area ofjuvenile justice. Id. at 379.
94. Lenhardt, supra note 3, at 27.
95. 1 U.S. DEP'T OF HoUs. AND URBAN DEV., HUD-1582B-FHEO, FAIR HOUSING
PLANNING GUIDE, at 2-7 (1996), available at
http://www.hud.gov/offices/fheo/images/fhpg.pdf; Henry Korman, Underwriting for Fair Housing? Achieving Civil Rights Goals in Affordable Housing Programs, 14 J. AFFORDABLE HOUSING & COMMUNITY DEv. L. 292, 299 (2005). Section 3608 of the Fair Housing Act (FHA) requires that the Secretary "administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies" of that statute. 42 U.S.C. § 3608(e)(5) (2006). The FHA does not give content to the "affirmatively furthering"
mandate, but has been interpreted broadly to include not only combating intentional discrimination in housing, but advancing integrative efforts capable of increasing opportunities and minimizing segregation in minority communities. See Michelle Ghaznavi Collins, Note, Opening Doors to Fair Housing: Enforcing the Affirmatively Further
LOCALITIES AS EQUALITYINNO VA TORS
the nondiscrimination mandate of Title VI of the Civil Rights Act of 1964 engage funding recipients in a similar inquiry into the possible sources of inequity.9 6 Applicable regulations contemplate, among other things, an in-depth inquiry into "significant system-wide service and fare changes and proposed improvements.., to determine whether those changes have a discriminatory impact" on minority communities.97 These programs stand out for the deep, multi-pronged inquiry into the sources of inequality that they facilitate. Also significant, for our purposes, is the extent to which they regard local jurisdictions as important partners in efforts to eliminate barriers to substantive
racial equality and opportunity.
B. A Modest Proposal: The Race Audit Device
This Part outlines an evaluative mechanism called the race audit. The audit proposal reflects structuralist and experimentalist insights, but also draws on business management scholarship on corporate social responsibility and
"social audits." Notably, this scholarship has not only conceived of such devices as tools for, inter alia, evaluating the performance of corporate entities along vectors such as mission, environmental impact, or contributions to social change.98 It has sometimes also understood them to be mechanisms for generating empirical knowledge relevant to conversations about the conditions necessary for "the good life."99
The purpose of the race audit proposal, which reflects a similar understanding, is to provide empirical information about the operation of race, at a structural level, in particular jurisdictions. Unlike existing regulatory devices, which typically focus on a single area, it envisions a multi-domain- e.g., education as well as housing or employment-inquiry into the extent to which local systems and structures, to include public entity entanglements with private entities, have contributed to ongoing racial disparities and spatial
Provision of the Fair Housing Act Through 42 U.S.C. § 1983, 110 COLUM. L. REV. 2135,
2143 (2010).
96. U.S. DEP'T OF TRANSP., FTA C 4702.1A, TITLE V1 AND TITLE VI-DEPENDENT GUIDELINES FOR FEDERAL TRANSIT ADMINISTRATION RECIPIENTS, at It- 1 (2007), available at
http://www.fta.dot.gov/documents/Title VI Circular 4702.1 A.pdf.
97. Id. at V-5. Millions of dollars in stimulus funds were recently denied to Bay Area Regional Transit after an administrative Title VI action brought by community activists demonstrated that the agency had not adequately considered an extension project's environmental impact and service to minority communities. Johnson, supra note 93, at 193.
98. See Homer H. Johnson, Corporate Social Audits-This Time Around, 44 Bus.
HORIzoNs 29, 32 (2001); see also Archie B. Carroll & George W. Beiler, Landmarks in the Evolution of the Social Audit, 18 ACAD. MGMT. J. 589, 590-96 (1975).
99. See Craig Mackenzie, Ethical Auditing and Ethical Knowledge, 17 J. Bus. ETHICS 1395, 1397 (1998); see also Lenhardt, supra note 3, at 49. This focus aligns nicely with a focus on Democratic experimentalism. See Brandon L. Garrett & James S. Liebman, Experimentalist Equal Protection, 22 YALE L. & POL'y REV. 261 (2004).
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